Partly allowed

Priya Nikethan v. State of Kerala

Kerala HC1 Dec 2010Crl.Rev.Pet/3553/2010

Case brief

AI extract

What is this about?

The High Court of Kerala heard a criminal revision petition challenging a conviction and sentence for cheque bouncing under Section 138 of the Negotiable Instruments Act. The court confirmed the conviction but modified the sentence to a fine instead of imprisonment, permitting payment within five months.

What did the court decide?

Conviction confirmed; sentence modified to a fine of Rs. 94,000 payable as compensation within five months, with a default sentence of three months imprisonment.

Priya Nikethan Vs State of Kerala — Cheque Dishonour | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE V.RAMKUMAR

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WEDNESDAY, THE 1ST DECEMBER 2010 / 10TH AGRAHAYANA 1932

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Crl.Rev.Pet.No. 3553 of 2010()

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-----------------------------------CRA.497/2004 of ADDL.SESSIONS COURT (ADHOC)III, TRIVANDRUM ST.845/2004 of JUDL. MAGISTRATE OF FIRST CLASS-IV (MOBILE), TRIVANDRUM

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REVN. PETITIONER(S)/APPELLANT/ACCUSED

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1. M/S. PRIYA NIKETHAN, PUNJAMCODE KATTAKADA, THIRUVANANTHAPURAM.

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2. K. SUNDARAM, DIRECTOR, PRIYA NIKETHAN, PUNJAMCODE, KATTAKADA.

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3. O. REHTIKUMARI, CHAIRPERSON, PRIYA NIKETHAN, PUNJAMCODE, KATTAKADA, THIRUVANANTHAPURAM.

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BY ADV. SRI.M.R.SASITH PANICKER

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RESPONDENT(S)/RESPONDENTS/COMPLAINANT

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1. HUDO, REGIONAL OFFICE SAPHALYAM, PALAYAM, THIRUVANANTHAPURAM REPRESENTED BY ITS SENIOR PROJECT APPRAISAL OFFICER DR. RAVI SHANKAR, S/O. V.S. DODDASWAMI, HUDCO, REGIONAL OFFICER THIRUVANANTHAPURAM - 695 001.

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2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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R2 BY PUBLIC PROSECUTOR SRI.SABU SREEDHARAN

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/12/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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svs/

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V.RAMKUMAR, J.

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.................................................

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Crl.R.P. No. 3553 of 2010

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................................................ Dated: Ist December, 2010

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O R D E R

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In this Revision Petition filed under Section 397 read with Sec. 401 Cr.P.C. the petitioners who were the accused in S.T. No. 845 of 2004 on the file of the J.F.C.M-IV, Thiruvananthapuram, challenge the conviction entered and the sentence passed against them for an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). The cheque amount was 88,670/-. The fine/compensation ordered by the lower appellate court is 89,760/-.

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I heard the learned counsel for the Revision Petitioners and the learned Public Prosecutor.

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The learned counsel appearing for the Revision Petitioners re-iterated the contentions in support of the Revision.

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The courts below have concurrently held that the cheque in question was drawn by the petitioners in favour of the complainant, that the complainant had validly complied with clauses (a) and (b) of the proviso to Section 138 of the Act, and that the Revision Petitioners/accused failed to make the payment

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Crl.R..P. No. 3553 of 2010 -:2:-

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within 15 days of receipt of the statutory notice. Both the courts have considered and rejected the defence set up by the revision petitioners while entering the conviction. The said conviction has been recorded after a careful evaluation of the oral and documentary evidence. This Court sitting in the rarefied revisional jurisdiction will be loath to interfere with the findings of fact recorded by the Courts below concurrently. I do not find any error, illegality or impropriety in the conviction so recorded concurrently by the courts below and the same is hereby confirmed.

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What now survives for consideration is the legality of the sentence imposed on the revision petitioners. No doubt, now after the decision of the Apex Court in Vijayan v. Sadanandan K. and Another (2009) 6 SCC 652 it is permissible for the Court to slap a default sentence of imprisonment while awarding compensation under Sec. 357 (3) Cr.P.C. But, in that event, a sentence of imprisonment will be inevitable. I am, however, of the view that in the facts and circumstances of this case a sentence of fine with an appropriate default sentence will suffice. Accordingly, for the conviction under Section 138 of the Act the revision petitioners are sentenced to pay a fine of ` 94,000/-. (Rupees ninety four thousand only ). The said fine shall be paid as compensation under Section 357 (1) Cr.P.C. The revision petitioners are permitted either to deposit the said fine amount

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Crl.R..P. No. 3553 of 2010

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-:3:-

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before the Court below or directly pay the compensation to the complainant within five months from today and produce a memo to that effect before the trial Court in case of direct payment. If they fail to deposit or pay the said amount within the aforementioned period, Revision Petitioners 2 and 3 shall suffer simple imprisonment for three months by way of default sentence.

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In the result, this Revision is disposed of confirming the conviction entered but modifying the sentence imposed on the revision petitioners.

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Dated this the 1st day of December, 2010.

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V. RAMKUMAR, JUDGE.

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ani/-

Priya Nikethan v. State of Kerala

Case brief

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Priya Nikethan v. State of Kerala

Case brief

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